Fletcher v Eebme Pty Ltd
[2007] FMCA 1235
•30 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLETCHER v EEBME PTY LTD | [2007] FMCA 1235 |
| BANKRUPTCY – Investigation by trustee – right to compel production by an associated entity of “books”. BANKRUPTCY – Investigation by trustee – right to claim privilege against production of books – right not to produce books where to do so in breach of other legislation – formulation of order. |
| Bankruptcy Act 1966, Part VI Divisions 4A and 4B, ss.5, 19AA, 30, 77A, 139L, 139W Privacy Act 1988, ss.6, S16A(2), clause 2.1(g) of Schedule 3 National Health Act 1953, s.135AA |
| Birdseye v Sheahan (2002) 196 ALR 598 Re Steele; ex parte Official Trustee in Bankruptcy v Clayton Utz (a firm) (1994) 48 FCR 236 Cross on Evidence, Byrne & Heydon, at [25 325] Hillvey v Minister for Community Services and Health (1991) 30 FCR 272 Breen v Williams (1996) 186 CLR 71 Simersall; Blackwell v Bray (1992) 35 FCR 584 |
| Applicant: | WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT JOHN COOKE |
| Respondent: | EEBME PTY LTD ACN 114 490 961 |
| File number: | BRG 562 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 27 July 2007 |
| Date of last submission: | 27 July 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 30 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wilkins |
| Solicitors for the Applicant: | Thynne & Macartney |
| Counsel for the Respondent: | Mr Peden |
| Solicitors for the Respondent: | Hopgood Ganim |
ORDERS
The respondent is obliged to produce the following classes of documents to the applicant, and is hereby ordered to produce the following specific books:
(a)all documents in the respondent’s possession, power or control in respect of amounts that have been received by the respondent as a result of work done or services performed by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
(b)
all documents in the respondent’s possession, power or control in respect of expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with work done for, or services provided to, the respondent by the bankrupt (whether as an employee or otherwise) in the period between
21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
(c)
a summary of the entries in any diary or appointment book maintained by the respondent for the period between
21 September 2005 and the date of this Order that records:
(i)the dates upon which the bankrupt has performed work on behalf of the respondent;
(ii)the nature of work performed on each such date, including the number of patients seen by the bankrupt on each such date.
(d)all documents relating to payments that the respondent has made for, or on behalf of, the bankrupt between 21 September 2005 and the date of this order, pursuant to the Executive Service Agreement dated 3 June 2005.
(e)the respondent’s accounting records for the financial years ending 30 June 2006 and 30 June 2007 (including, without limitation, all cashbooks, ledgers or other records of income or expenses) that disclose money received by the respondent as a result of work done or services performed by the bankrupt, and expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with that work or services.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 562 of 2007
| WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT JOHN COOKE |
Applicant
And
| EEBME PTY LTD ACN 114 490 961 |
Respondent
REASONS FOR JUDGMENT
On 21 September 2005, a sequestration order was made against the estate of Robert John Cooke. The applicant was appointed the trustee of the bankrupt’s estate. On 20 October 2006 the applicant served on the respondent a notice expressed as having been issued pursuant to powers conferred upon the applicant by s.77A Bankruptcy Act1966. That notice required the respondent to produce specified “books”, a term defined in s.5 of the Act.
A dispute has arisen as to whether, and to what extent, the respondent is required to produce the documents requested. A secondary issue was raised, namely the entitlement of the trustee to cross examine an officer of the respondent company pursuant to s.77A(3)(a)(ii) of the Act. I will deal with that issue in due course.
In order to understand the present application, and the respondent’s attitude to it, it is necessary to understand a little of the background to the present application.
In June 2005 Dr Cooke had practised for many years on his own account as an orthopaedic surgeon. He derived not inconsiderable income from his profession. Dr Cooke contends that from 3 June 2005 he has been employed by the respondent, and that is his source of income. By a document styled “Executive Service Agreement” dated
3 June 2005 the respondent company employed Dr Cooke as a medical specialist, to provide services to its business. The terms of the Executive Service Agreement are in evidence. That agreement:
e)provides, in Recital A, that the respondent is engaged in the business of health services;
f)provides, by Recital B, that the bankrupt agreed to act and be appointed a medical specialist practising as an orthopaedic surgeon for the respondent’s business;
g)provides, by Recital C, that the bankrupt was willing to be employed by the respondent, and that the respondent was willing to employ the bankrupt;
h)provides by Clause 2.1 thereof, that the respondent employed the bankrupt;
i)provides, by Clause 2.2:
“The Company accepts and agrees to such hire and engagement and employment with the knowledge and understanding of:-
a) The age of the Employee and subsequent possibility of impending retirement as a medical practitioner;
b) The poor health of the Employee…
c) The threat and consequence of bankruptcy to the Employee, …
j)by Clause 3.1 thereof obliged the bankrupt to perform all duties customarily performed by one holding his position, consistent with his seniority, qualifications, experience and appointment as an orthopaedic surgeon.
k)by Clauses 4.2 to 4.6 thereof required the bankrupt to maintain his registration as a medical practitioner, medical indemnity insurance, and membership of a number of professional organisations.
l)by Clause 5.1 stipulated that the respondent would pay the bankrupt weekly remuneration of $1,200.
m)by Clause 5.2 provided that the respondent would also pay “by way of an ongoing interest free loan” to the bankrupt the costs of him maintaining his membership of a number of professional bodies.
n)by Clause 6.1 provided that the respondent would reimburse the bankrupt all necessary expenses incurred by him pursuant to the respondent’s directions.
The respondent is a company that was incorporated on 27 May 2005. Its sole director and shareholder is Margaret Bartlett, a nurse, who describes herself as a friend of the bankrupt.
Against that background, the applicant trustee apparently wishes to investigate the circumstances by which the bankrupt came to be employed by the respondent, and whether the use of the respondent is a device by which income that would ordinarily be earnt by the bankrupt is diverted to the respondent corporation. The trustee points to Clause 2.2(c) of the Executive Services Agreement, noted above, and says that the employment agreement was plainly made against the background of the bankruptcy.
Section 77A Bankruptcy Act requires that the trustee is conducting an investigation of the bankrupt’s “examinable affairs” and/or conduct, pursuant to s.19AA of the Act. I am satisfied, having read the affidavit of the applicant, that he is presently conducting an investigation under s.19AA of the Act. “Examinable affairs” is defined in s.5 of the Act to mean, in relation to a person:
e)The person’s dealings, transactions, property and affairs; and
f)The financial affairs of an associated entity of the person, in so far as they are, or appear to be, relevant to the person or to any of his or her conduct, dealings, transactions, property and affairs.
Section 5B(h) of the Act provides that a company is associated with a person if the person is employed or is engaged under a contract for services by the company. Therefore, the respondent is associated with the bankrupt and falls within the concept “associated entity” in s.5 of the Act. It follows that the applicant trustee is empowered to conduct an investigation into the financial affairs of the respondent, but only in so far as they are, or appear to be, relevant to the bankrupt or to any of his conduct, dealings, transactions, property and affairs.
In the present case it is said that the trustee is conducting the investigation to determine whether a further income contribution assessment can be made under s.139W of the Act. That section requires the trustee to make an assessment of the bankrupt’s income. In the present application, Counsel for the applicant referred to the definition of income in s.139L of the Act. Relevantly, “income” is given an expanded definition in s.139L(1)(a)(vii) of the Act to include:
“The amount of any money, or the value of any other consideration received by a person other than the bankrupt from another person as a result of work done or services performed by the bankrupt, less any expenses (other than expenses of a capital nature) necessarily incurred by the first mentioned person in connection with the work or services.”
It seems, at least so far as this application is concerned, that the trustee is investigating matters pertaining to a potential further income contribution under Part VI Division 4B of the Act, and is not looking to recover money said to be earned by the bankrupt but disguised as income of the respondent company, a procedure under Part VI Division 4A of the Act and discussed in cases such as Birdseye v Sheahan (2002) 196 ALR 598.
The extended definition of income contained in s. 139L(1)(a)(vii) of the Act requires the trustee to look at the amount of money received by, relevantly, the respondent, from patients or others, presumably such as health insurers or Medicare as a result of work done or services performed by the bankrupt and less any expenses (other than expenses of a capital nature) necessarily incurred by the company in connection with that work or those services.
To that end, the applicant trustee required the respondent company to produce certain books. I think it is useful in deciding what orders ought to be made, to consider the request made under s.77A of the Act, the form of the application and what the parties’ respective representatives have said about the obligation to produce the requested documents. Before doing so, it is necessary to consider two overarching objections that were raised by the respondent.
As is apparent, the respondent and the bankrupt provide medical services to patients. The patients are those of the respondent. As is apparent from Recital A to the Executive Service Agreement, referred to above, the respondent company is engaged in the business of the provision of health services. Those services are in fact provided on the respondent’s behalf by medical practitioners employed or contracted by it. The bankrupt is not the only medical specialist that provides medical services on the respondent’s behalf.
The classes of documents of which the trustee has sought production are understandably broad. A number of the documents that are sought by the applicant trustee (perhaps inadvertently) may require the disclosure of details of patients and medical procedures performed for them. The solicitors for the respondent assert, in their letter dated
6 November 2006, that the provision of such personal and private information regarding the names and details of patients and medical treatment afforded to them is privileged information. Elsewhere, those solicitors assert that the respondent ought not be required to disclose personal and private information of the patients.
The question that arises is whether the recipient of a request by a trustee under s.77A of the Act can lawfully refuse to produce documents, or to answer questions, on the grounds of some privilege. Certainly, it has been held that s.77A of the Act does not abrogate the common law right to assert legal professional privilege: Re Steele; ex parte Official Trustee in Bankruptcy v Clayton Utz (a firm) (1994) 48 FCR 236. Nor, in my view, would it abrogate the privilege against self incrimination.
However, the relationship of doctor and patient is not one that attracts privilege: Cross on Evidence, Byrne & Heydon, at [25 325]; Hillvey v Minister for Community Services and Health (1991) 30 FCR 272.
There is some suggestion in certain judgments of Justices of the High Court of Australia in Breen v Williams (1996) 186 CLR 71 that a medical practitioner may come under a duty not to disclose information without the consent of the patient. That case determined that the medical records are those of the medical practitioner and not of the patient, and the latter cannot compel the former to produce them. In the course of his judgment, Brennan CJ said, at 81:
“Equity might restrain the respondent from disclosing without authority any information about the appellant and her medical condition that is contained in the respondent’s records and, in that sense, it might be arguable that that information is the property of the appellant.”
His Honour did not determinatively consider the issue with which I am concerned any further.
At page 92, Dawson and Toohey JJ said:
“Whilst duties of a fiduciary nature may be imposed upon a doctor, they are confined and do not cover the entire doctor-patient relationship. Thus a doctor is under a duty to protect the confidentiality of information given by a patient [citing W v Egdell [1990] ch 359 at 389].”
Assuming therefore that the respondent company had a duty of confidence to its patients, can the respondent be compelled to produce documents which might cause it to breach that duty? There is nothing in the Bankruptcy Act which, in terms, abrogates a right to claim privilege against production of documents to a trustee, nor a right to object to production on the grounds that to do so would breach a duty of confidentiality.
It is difficult to see why a trustee should be entitled to the production of documents that do not relate solely to financial matters. After all, the trustee is tasked to get in the assets of the bankrupt and distribute them to his creditors. The trustee may also determine that a bankrupt should contribute part of his income to his creditors. In each of those matters, the trustee is concerned with financial matters. If the bankrupt happens to be a medical practitioner there is no justification, except in so far as it is necessary to properly consider the financial affairs of the bankrupt, for the trustee to know, or be entitled to know, matters that would attract the duty of confidentiality in the bankrupt as a medical practitioner. In my view, it is strongly arguable that the respondent would be entitled to resist the production of documents to the trustee if those documents contain confidential information provided to the respondent or to the bankrupt by patients. That confidential information may extend to details of procedures performed, and the names and addresses of patients. It would not, in my view, extend to bare details of money paid to the medical practitioner whether by the patients, or on his or her behalf, for services provided.
Fortunately, the determination of this interesting question seems to have been rendered only marginally relevant by the expansive provisions of the Privacy Act1988 (Cth). That abstruse piece of legislation now covers the private health sector throughout Australia.
Although the solicitors for the respondent, and during his address, Counsel for the respondent, raised privacy concerns, neither descended to any particularity of provisions of the Privacy Act which were relied on to preclude the disclosure of information that may be caught in the documents that the trustee has requested production of. Nor did the Court have the benefit of any contrary argument by the trustee as to whether or not he contends that the Bankruptcy Act provides legal authorisation for the disclosure of information that would otherwise be protected. I have, therefore, without the assistance of either party, attempted to determine the relevant provisions of the Privacy Act that may be germane to the present dispute.
By s.6 Privacy Act 1988 “breach” a National Privacy Principle is given the meaning ascribed by s. 6A of the Act. Section 6A(1) of the Act provides:
For the purposes of this Act, an act or practice breaches a National Privacy Principle, if, and only if, it is contrary to, or inconsistent with, that National Privacy Principle.
Section 16A(2) of the Act stipulates that an organisation must not do an act, or engage in a practice, that breaches a National Privacy Principle.
The National Privacy Principles are set out in Schedule 3 to the Act.
Clause 2 of Schedule 3 deals with the use and disclosure of information. It provides, relevantly:
2.1An organisation must not use or disclose personal information about an individual for a purpose (the secondary purpose) other than the primary purpose of collection unless:
g) the use or disclosure is required or authorised by or under law.
None of the other permitted grounds of disclosure appear to me to apply in the present case.
“Personal information” is defined in s.6 of the Privacy Act to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion.
Unless required or authorised by or under law the respondent is therefore prevented from disclosing to the trustee any records which contain “personal information” about patients. Such records may also contain information which cannot be disclosed, by reason of s.135AA National Health Act 1953.
The determinative question then is whether the respondent should be compelled to disclose documents that contain “personal information” but which also contain information relevant to investigating the receipt of “income” as defined in s.139L(1)(a)(vii) Bankruptcy Act1966. I do not think that the Bankrupty Act, in particular s.77A thereof, “requires” the disclosure of “personal information” so as to bring it within that limb of the disclosure permitted by clause 2.1(g) of Schedule 3 to the Privacy Act. The disclosure of such documents is, in my view, “authorised” by s.77A of the Bankruptcy Act, but only to the extent that the documents are relevant to the trustee’s investigation: s.77A(2)(e) Bankruptcy Act. Therefore, if the necessary financial information can be provided to the Trustee without disclosure of “personal information”, as that term is defined in s.6 Privacy Act, that would, in my view, amount to sufficient compliance by the respondent with the trustee’s request pursuant to s.77A Bankruptcy Act.
Whilst there may be circumstances in which the identity of the particular patient, or the procedure performed or service provided to that patient is relevant to the trustee’s investigation, the affidavit evidence produced thus far in this case does not satisfy me that it is yet relevant in the trustee’s investigation hereunder consideration. The trustee in the present case is interested in determining whether, and if so, how much money was received by the respondent from either patients, health insurers or Medicare as a result of work done or services performed by the bankrupt. That information ought to be able to be provided in a sanitised form that does not involve the respondent in a breach of the Privacy Act.
Turning then to the classes of documents sought of which the trustee seeks production. First, the Trustee seeks:
a)all documents in the respondent’s possession, power or control in respect of amounts that have been received by the respondent as a result of work done or services performed by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 21 September 2005 and the date of this Order.
What was sought in the s.77A notice was “all relevant documents in relation to Eebme Pty Ltd’s earnings and income that had been derived from the bankrupt’s practice or employment with Eebme Pty Ltd (that is from 3 June 2005).
The respondent initially objected to the production of the documents sought on the basis that they were irrelevant to the proper investigation of the bankrupt’s examinable affairs. This was, it was argued, because the documents sought related to the respondent’s earnings from the bankrupt and not the bankrupt’s earnings from the respondent. It was submitted that these documents were therefore irrelevant. This response plainly overlooks the extended definition of “income’ in s.139L(1)(a)(vii) of the Bankruptcy Act. It is relevant for the trustee to know the amount of money received by the respondent as a result of work done or services performed by the bankrupt. The order sought in the application and in the draft Orders submitted to the Court correctly amended the starting date of the enquiry and followed the language of s.139L(1)(a)(vii) of the Act. In its Notice stating grounds of opposition to the application, the respondent contended that the class of documents sought was “vague, ambiguous and oppressive.” In my view, the type of documents sought by the trustee are clear and, provided the financial records of the respondent can be dissected, so as to provide only that information which pertains to work performed by the bankrupt, it is not oppressive for those documents to be produced. I have already dealt with ground of opposition 1(b). Those documents should be produced, to the extent that they disclose the financial information requested, and do not disclose personal information in breach of the Privacy Act. That deals with the ground of opposition raised in paragraph 1(c).
Secondly, the trustee seeks:
b)
all documents in the respondent’s possession, power or control in respect of expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with work done for, or services provided to, the respondent by the bankrupt (whether as an employee or otherwise) in the period between
21 September 2005 and the date of this Order.
The documents sought are plainly relevant. For the reasons given in respect of category (a) the objection raised in paragraph 2(a) of the respondent’s Notice is not made out. Again, the trustee has followed the wording of s.139L(1)(a)(vii) of the Act and is entitled to see documents which disclose the information requested. The respondent says that such documents have never been sought in the s.77A notice. Certainly, the documents were not requested in express terms as they have been in the application. Nevertheless, in paragraph 1 of the s.77A notice, a distinction is made between “earnings” and “income” of the respondent that ought to have flagged to the respondent that the trustee was seeking documents which went beyond those which disclosed gross earnings of the respondent. The distinction between “earnings” and “income” could only be made if something was deducted from the earnings in the nature of expenses. An experienced insolvency practitioner (as was involved in this case on the respondent’s side) receiving the s.77A notice, ought to have been aware that the trustee was entitled to see not only documents which disclosed monies paid to the respondent as a result of work or services performed by the bankrupt, but also documents showing any expenses necessarily incurred in connection with that work or services. The documents requested should be produced.
Thirdly, the trustee seeks:
c)Any diary or diaries or appointment book or books for the bankrupt’s patients in the possession, power or control of the respondent for the period between 21 September 2005 and the date of this Order (or any part of that period).
The trustee no doubt seeks the diaries or appointment books to reconcile the number of patients seen by the bankrupt at the respondent’s premises with the income said to have been derived by the respondent as a result of the provision of the bankrupt’s services. However, two concerns arise. First, the respondent has pointed out (in its solicitor’s letter dated 6 November 2006) that it does not keep a separate appointment book for each of the specialists attending at its medical centre. The trustee is plainly not entitled to see details of patients other than those consulted by the bankrupt. Further, except for the purpose of testing the veracity of the financial documents otherwise produced by the respondent, there is nothing in the appointment books or diaries that could assist the trustee in his present investigations. In my view, considerations of patient confidentiality and a need to avoid a breach of the Privacy Act result in a need to carefully circumscribe what is required to be produced by the respondent. In my view, the respondent should not be required to produce the actual appointment books or diaries, but should only be required to produce extracts or a summary which shows the days on which the bankrupt has seen patients or performed procedures for the respondent, and the number of patients or procedures performed on those days.
Fourthly, the trustee seeks:
d)A copy of any payslips provided by the respondent to the bankrupt in respect of work done for, or services provided to, the respondent by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 12 September 2005 and the date of this Order.
Presumably, the date 12 September 2005 is intended to read
21 September 2005, the date of the sequestration order.
The short answer to this request is that the respondent does not produce payslips for the bankrupt. The applicant has not adduced any evidence to contradict this assertion by the solicitors for the respondent. The respondent has produced other documents as set out in its solicitor’s letter dated 6 November 2006, which in my view adequately respondents to the request made by the trustee. No order will be made in respect of this class of documents requested by the trustee.
Fifthly, the trustee seeks:
e)A copy of the bankrupt’s PAYG payment summaries for the years ended 30 June 2006 and 30 June 2007 issued by the respondent.
Those documents have been produced to the trustee and no order is sought in relation to them.
Sixthly, the trustee seeks:
f)All documents relating to payments that the respondent has made for, or on behalf of, the bankrupt between 21 September 2005 and the date of this Order (including, without limitation, any invoices, bills, or other expenses).
I have referred above to certain provisions of the Executive Service Agreement that requires the respondent to meet expenses on the bankrupt’s behalf. Certainly, documents evidencing those payments ought be produced. It cannot be right, as the respondent says in paragraph 6 of the notice of opposition that such documents do not exist. There is however, no evidence in the affidavit material filed on behalf of the trustee which gives rise to the inference that there are further documents that might exist. Certainly the gratuitous payment by the respondent of private expenses of the bankrupt would not be caught by the expanded definition of “income” in s.139L(1)(a)(vii) of the Act because there the recipient of money derived as a result of the bankrupt’s work is only entitled to deduct expenses “necessarily” incurred. Other than the payments required to be made under the Executive Service Agreement, I cannot see how documents of the type sought by the trustee are relevant.
Seventhly, the Trustee seeks:
g)The respondent’s financial statements for the financial year ended June 2006.
These documents were not sought in the s.77A notice. Further, as has already been stated, the respondent apparently engages the service of other medical practitioners to do work for it. The production of financial statements disclosing the respondent’s earnings and expenses “en globo” would be of little assistance to the applicant, except, perhaps to persuade it that the respondent is conducting a genuine commercial activity and not merely acting as the puppet of the bankrupt. I decline to order the production of the documents requested.
Finally, the trustee seeks:
h)The respondent’s accounting records for the financial year ended 30 June 2007 (including, without limitation, all cashbooks, ledgers or other records of income or expenses)
The respondent should produce these documents, not only for the financial year ending 30 June 2007 but also for the financial year ending 30 June 2006 but only in so far as they relate to earnings derived from work performed by the bankrupt, and expenses necessarily incurred as a result of that work being performed. It is not apparent whether the financial records of the respondent enables such dissection to be easily undertaken. Assuming that it can, the documents ought be produced. If the documents cannot be produced in a manner that relates only to the work performed by the bankrupt, then it may be necessary for the trustee to ask questions of an officer of the respondent, a matter to which I now turn.
At the commencement of the application, Counsel for the respondent raised what he described as a preliminary matter. This related to the right of Counsel for the applicant trustee to cross examine Ms Bartlett, the sole director and shareholder of the respondent. Counsel for the respondent was keen to avoid a cross examination of Ms Bartlett that went beyond what was reasonably necessary to enable the Court to adjudicate upon the obligation of the respondent to comply with the s.77A notice. Counsel for the respondent said that his fear of a wide ranging and impermissible cross examination gained support from the affidavit of the trustee which referred to indicia of a relationship between Ms Bartlett and the bankrupt. Also, paragraph 2(b) of the application sought an order that the trustee may require Ms Bartlett to explain matters to which documents produced by the respondent relate.
In my view, the order sought in paragraph 2(b) of the application and a request to cross examine Ms Bartlett is premature. The Court is asked first to determine whether or not the respondent should produce certain classes of documents. If it does, then the Trustee is empowered by s.77A(3)(a)(ii) of the Act to require Ms Bartlett to explain to the best of her knowledge and belief “any matter about the compilation of the books or to which the books relate”. That right, that the trustee undoubtedly has, arises “if the books are so produced”. Therefore, it is only once production of the books has been given that the right to ask questions arises and, then, only in the manner stipulated by s.77A(3)(a)(ii) of the Act. That situation has not yet arisen. If documents are produced by the respondent and the trustee needs assistance to understand them, then he can ask Ms Bartlett for that assistance. If Ms Bartlett refuses to provide such assistance, or answer any questions reasonably asked of her, then the trustee can bring the matter back before the Court. However, all of those matters are, at this stage, hypothetical and, accordingly, I decline to make the orders sought in paragraph 2(b) of the application.
As to the procedure adopted by the trustee generally, mainly seeking relief under s.30 Bankruptcy Act, it is a procedure endorsed by Gummow J in Simersall; Blackwell v Bray (1992) 35 FCR 584 particularly at 591-2.
Accordingly, that the respondent is obliged to produce the following classes of documents to the applicant, and is hereby ordered to produce the following specific books:
a)all documents in the respondent’s possession, power or control in respect of amounts that have been received by the respondent as a result of work done or services performed by the bankrupt (whether as the respondent’s employee or otherwise) in the period between 21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
b)
all documents in the respondent’s possession, power or control in respect of expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with work done for, or services provided to, the respondent by the bankrupt (whether as an employee or otherwise) in the period between
21 September 2005 and the date of this order, provided that such documents not disclose “personal information” of patients of the respondent as that term is defined in s.6 Privacy Act 1988.
c)
a summary of the entries in any diary or appointment book maintained by the respondent for the period between
21 September 2005 and the date of this Order that records:
i)the dates upon which the bankrupt has performed work on behalf of the respondent;
ii)the nature of work performed on each such date, including the number of patients seen by the bankrupt on each such date.
d)all documents relating to payments that the respondent has made for, or on behalf of, the bankrupt between 21 September 2005 and the date of this order, pursuant to the Executive Service Agreement dated 3 June 2005.
e)the respondent’s accounting records for the financial years ending 30 June 2006 and 30 June 2007 (including, without limitation, all cashbooks, ledgers or other records of income or expenses) that disclose money received by the respondent as a result of work done or services performed by the bankrupt, and expenses (other than expenses of a capital nature) necessarily incurred by the respondent in connection with that work or services.
I shall hear the parties further as to the form of order, and as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Wilson FM
A/ Associate: K Glover
Date: 30 July 2007
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